Bombay High Court
00Pesh Raashmikant Shah Through ... vs M/S Elegant Industries, Pvt.Ltd on 21 November, 2014
Author: R.G.Ketkar
Bench: R.G.Ketkar
Tapadia RR 1 / 54 FA/762/1990
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.762 OF 1990
WITH
CIVIL APPLICATION NOS.1030/2009 & 1070/2009
Rupesh Rashmikant Shah, Minor, Appellant
through his next friend
Rashmikant Hiralal Shah
Vs
1. M/s.Elegant Industries Pvt Ltd,
3rd floor, 250-D, Worli, .. Respondents
Prabhadevi, Bombay-400 025
(Owner);
2. Oriental Fire and General
Insurance Co.Ltd.
Mr.Tejpal Shrikant Ingale a/w Umesh Hanmantrao Pawar, Mr.
Anand D. Landge, Advocates for the Appellant.
Ms. Anita A. Agarwal, Advocate for respondent no.2.
CORAM : R.G.KETKAR,J.
RESERVED ON : 12/08/2014
PRONOUNCED ON: 21/11/2014
JUDGMENT:
1) Heard Mr. Tejpal S. Ingale, learned counsel for the appellant and Ms. Anita A. Agarwal, learned counsel for respondent no.2 at length. None appears for respondent No.1, though duly served.
2) By this Appeal, the original claimant has challenged the Judgment and Award dated 30.3.1990 passed by the learned Member, IIIrd Addl. Motor Accidents Claims Tribunal for Gr.
Bombay, (for short, 'Tribunal') in Application No. 565 of 1979 filed ::: Downloaded on - 24/11/2014 23:47:28 ::: 2 / 54 FA/762/1990 under the provisions of Motor Vehicles Act, 1988 (for short `Act').
By that order, the Tribunal partly allowed the petition instituted by the appellant, hereinafter referred to as 'claimant', and held that he is entitled to recover from respondent no.1, (hereinafter referred to as opposite party), and respondent no.2, ( hereinafter referred to as 'Insurer'), compensation of Rs.4,12,000/- together with interest at 6 per cent per annum from the date of the petition until realization, among other directions.
3) The Petition was instituted by the claimant on 16.4.1979 through his father, the next friend, as at the time of accident the claimant was aged about 8 years. The Petition was instituted claiming compensation for the injuries sustained by him in the motor vehicle accident that took place on 16.10.1978 at about 4.15 pm near Kashinath House, Nepeansea Road, Mumbai. Initially, compensation to the tune of Rs. 1,00,000/- was claimed. By filing application on 26.11.1981 at Exhibit 7, the claim was raised to Rs.15,00,000/-. During the pendency of the Petition, application dated 8.12.1987 at Exhibit 28 was filed raising compensation from Rs.15,00,000/- to Rs. 50,00,000/-. The application at Exhibit-7 was granted. The application at Exhibit-
28 was not decided as on behalf of the claimant it was urged before the Tribunal that it can fix the amount of compensation in excess if so desired and the claimant is prepared to pay such ::: Downloaded on - 24/11/2014 23:47:28 ::: 3 / 54 FA/762/1990 deficit court fees on the enhanced claim of compensation. The relevant and material facts giving rise for filing of this appeal, briefly stated, are as under, -
4) On 18.10.1978 at about 4.15 pm, the claimant accompanied by his servant Sitaram who was then aged about 12 years, were crossing Nepeansea Road when vehicle bearing Registration no. MMF-2823 (for short, 'offending vehicle') owned by the opposite party, came from Kamps corner side and dashed the claimant all of a sudden. At that time, the claimant and Sitaram were crossing Nepeansea Road from East to West and the offending vehicle was being driven from North to South. As a result of the impact, the claimant sustained serious injuries and was removed to Breach Candy Hospital. He was admitted there and was unconscious for about 5.1/2 months. The driver of the offending vehicle was prosecuted by the police for rash and negligent driving in criminal case which was registered as C.R.No.1191 of 1978. The learned Magistrate, as is evident from record, convicted the driver upon admitting his guilt.
5) On account of the accident, the claimant was required to take extensive medical treatment as his brain was affected. He could not appear for the ensuing examination because of the continuous pain and suffering undergone by him.
::: Downloaded on - 24/11/2014 23:47:28 :::4 / 54 FA/762/1990 It was contended that an amount of Rs.50,000/- was spent till the filing of the petition over treatment. The claim for general damages for pain and suffering for shock is also claimed including conveyance charges, medical expenses, future conveyance charges, loss of amenities of life etc. It is the case of the Claimant that he requires constant attention for the purpose of carrying daily necessities of life and separate amount of compensation is claimed under that head, so also loss of pleasure of life as the claimant is unable to participate in any game or event. In all, the claimant claimed amount of Rs.50,00,000/- compensation.
6) It is further contended that the opposite party', is owner of the offending vehicle and the same was driven by its driver in a rash and negligent manner. The opposite party is, therefore, liable to pay damages. Respondent no.2 is an Insurer of the offending vehicle and the amount of damages is claimed from the opposite party as also the Insurer.
7) The Written Statement was filed by the opposite party and the Insurer at Exhibit-6 opposing the claim. It was contended that the accident was not the result of any rash and negligent act on the part of the opposite party. The claimant and his servant - Sitaram were guilty of contributory negligence and ::: Downloaded on - 24/11/2014 23:47:28 ::: 5 / 54 FA/762/1990 consequently he is not entitled to claim any sum from the Insurer.
8) On the basis of pleading of the parties, the Tribunal framed the necessary Issues. The parties led evidence in support of their respective case. After considering the material on record, the Tribunal partly allowed the Petition, as indicated herein above. It is against this decision, the claimant has instituted this Appeal for enhancement of compensation.
9) In support of this Appeal, Mr. Ingale has taken me through the impugned order passed by the Tribunal as also the evidence on record. He submitted that the heads under which compensation is awarded in personal injury cases, are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure;
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages) ::: Downloaded on - 24/11/2014 23:47:28 :::
6 / 54 FA/762/1990
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
(vi) Loss of expectation of life (shortening of normal longevity).
10) Mr. Ingale submitted that as against the claim of Rs.
2,50,924/- towards expenses already incurred by the claimant before making the Award, the Tribunal awarded amount of Rs.1,11,985/-. The claimant has, therefore, claimed remaining amount of Rs.1,38,939/- in this Appeal. Under the head 'physical pain and suffering' he had claimed Rs.9,00,000/-. As against this, the Tribunal awarded Rs.75,000/- only. Under the head 'loss of amenities of life', an amount of Rs.9,00000/- is claimed. As against this, the Tribunal did not award any amount. Under the head 'inevitable expenses', he has claimed:
(a) Conveyance to the tune of Rs. 4,00,000/- at the rate of Rs.36,000/- per annum. The Tribunal awarded Rs.25,000/-.
Towards conveyance and physiotherapy In the present Appeal, the claimant is demanding Rs.6,48,000/-.
(b) Future medical treatment and periodical check up Rs.4,00,0000/- @ Rs.66,000/- per annum, ( Rs.36,000/- p.a. For medical and Rs. 30,000/- pa. Towards consultation fees and ::: Downloaded on - 24/11/2014 23:47:28 ::: 7 / 54 FA/762/1990 hospitalization) the Tribunal awarded Rs.5000/-.
(c) Contingency and Special Education Rs.2,60,000/-. The Tribunal granted Nil.
(d) Expenses of Attendant to the tune Rs.4,80,000/- at the rate of Rs.75,000/-. The Tribunal awarded Rs.25,000/-. The claimant is, therefore, demanding remaining amount of Rs.4,55,000/- under this head.
(e) Physiotherapy to the tune of Rs.4,80,000/- at the rate of Rs.24,000/- per year. The Tribunal awarded Rs. 25,000/- by clubbing conveyance and physiotherapy together.
(f) Crunch Tips: Rs.32,000/- at the rate of Rs.2,500/- per year, the Tribunal awarded Rs.1,500/- under this head.
(g) Other Miscellaneous already incurred expenditure, the Tribunal awarded Rs.18,515/-.
11) Mr. Ingale further submitted that the claimant also demanded Rs.1,90,000/- under the head 'loss suffered by his mother'. The Tribunal awarded Nil compensation. Under the head 'loss of future income', he claimed Rs.40,00,000/- at the rate of Rs.1,00,000/- per year. The Tribunal awarded lump sum Rs.1,50,000/-. Under the head of loss suffered by family in business, an amount of Rs.5,50,000/- was claimed. The Tribunal awarded Nil. Mr Ingale, therefore, submitted that as against the claim of Rs.88,42,934/- made by the claimant, the Tribunal ::: Downloaded on - 24/11/2014 23:47:28 ::: 8 / 54 FA/762/1990 awarded Rs.4,12,000/- along with interest at the rate of 6% per annum. He submitted that the interest should be at the rate of Rs. 9.5% per annum. Having regard to a recent decision of the Apex Court, interest at the rate of 12 % per annum ought to be awarded.
12) In support of his submissions, Mr. Ingale relied upon the following decisions:
(1) Ibrahim Vs Raju,1
(2) Rajkumar Vs. Ajaykumar,2
(3) Nizam Institute of Medical Science Vs. Prasanth
Dhananka 3
(4) New India Assurance Company Ltd Vs. Shweta
Mehta,4
(5) R.D.Hattangadi Vs Pest Control India) (P) Ltd,5
(6) Nagappa vs Gurudayal Singh,6
(7) Arvind Kumar Mishra Vs. New India Assurance Co
Ltd,7
(8) Govind Yadav Vs. New India Assurance Co Ltd,8
(9) K.Suresh Vs. New India Assurance Co. Ltd,9
(10) Rekha Jain Vs. National Insurance Co.Ltd,10 1 AIR 2012 SC 534 2 (2011) 1 SCC 3 2009 (6) SCC 11 4 2010 (3) Mah.L.J. 145 5 (1995) 1 SCC 551 6 2003 (2) SCC 274 7 2010 (1) SCC 254 8 2011 (10) SCC 683 9 2012 (12) SCC 274 10 2013 (8) SCC 389 ::: Downloaded on - 24/11/2014 23:47:28 ::: 9 / 54 FA/762/1990 (11) Sanjay Varma Vs. Haryana Roadways,11 (12) V.Mekala Vs. M. Malathi,12
13) On the other hand, Ms. Agarwal supported the impugned order. She submitted that during the pendency of the Appeal, the claimant filed Civil Applications No.4287 of 2005, 1070 of 2005, 2107 of 2010 for bringing on record subsequent events and relevant circumstances which, according to him, are necessary for final disposal of the Appeal. She submitted that the Act does not provide making further award/s after final Award is made. In the present Appeal, the claimant seeks enhancement of compensation awarded by the Tribunal. The Court, therefore, will have to examine the basic structure of compensation on existing evidence before the Tribunal for ascertaining whether the compensation is calculated properly or not, is less, all required heads under which compensation is dealt with etc. She submitted that, however, no case can be made out at the appellate stage which requires new evidence. She submitted that fresh award cannot be made for future medical expenses but in the final Award the Court should arrive at a reasonable estimate on the basis of evidence on record and the mode and manner of grant and disbursement of the amount of compensation. In support of this proposition, she relied upon the 11 (2014) 3 SCC 210 12 JT 2014 (6) SC 212 ::: Downloaded on - 24/11/2014 23:47:28 ::: 10 / 54 FA/762/1990 decision of the Apex Court in the case of Nagappa 6.
14) She further submitted that as against the claim of Rs.2,50,924/-, the Tribunal awarded Rs.1,11,985/- under the Head 'expenses already incurred' before making Award. The claimant has claimed additional amount of Rs.1,38,939/- towards additional expenses incurred by him. The claimant has not substantiated this claim by adducing evidence. In the absence of specific evidence, the claim made by the claimant cannot be granted. Ms Agarwal has distinguished the cases relied by Mr Ingale while claiming compensation under heads (i) physical pain and suffering, (ii) loss of amenities of life, (iii) conventional heads, (iv) loss suffered by mother; (v) loss of future income, (vi) loss suffered by the family. She submitted that at the highest the claimant may be entitled to a small amount of enhancement in compensation considering the date of accident, prevailing economy and the standard of living at the relevant time. As far as interest at the rate of 6% per annum is concerned, she submitted that the Tribunal awarded interest at the rate of 6% per annum considering economy at the relevant time. The yardstick of the present day economy cannot be applied to decide the case of interest. Hence, no fault can be found with rate of interest awarded by the Tribunal. In support of her submissions, She relied upon the following decisions.
::: Downloaded on - 24/11/2014 23:47:28 :::
11 / 54 FA/762/1990
(1) Lata Wadhwa Vs. State of Bihar,13
(2) New India Assurance Co Ltd Vs. Satender,14
(3) Kaushlya Devi Vs. Karan Arora,15
(4) State of Haryana Vs.Jasbir Kaur,16
(5) Reshma Kumari Vs.Madan Mohan,17
(6) Nagappa Vs. Gurudayal Singh 6
15) I have considered the rival submissions made by the
learned counsel appearing for the parties. I have also perused the material on record. I was also taken through the evidence on record by the learned counsel appearing for the parties. On the basis of rival submissions advanced by the parties, following points arise for my consideration, -
Sr.No. Points
1) Whether the claimant proves that he sustained injuries in the
accident that took place on 18 th October, 1978 due to rash and/or negligent driving of the motor car bearing registration No. MMF-3823 belonging to the opposite party ?
2) Whether the opposite party proves that the accident took place on account of contributory negligence on the part of the claimant and his servant - Sitaram ?
3) Whether the claimant is entitled to enhanced compensation under the different Heads ?
FINDINGS :- 1) In the affirmative 13 (2001) 8 SCC 197 14 (2006) 13 SCC 60 15 (2007) 11 SCC 120 16 (2003) 7 SCC 484 17 (2013) 9 SCC 65 ::: Downloaded on - 24/11/2014 23:47:28 ::: 12 / 54 FA/762/1990
2) In the negative
3) As per the Order.
POINTS 1 AND 2
16) In the present case, the claimant has contended that the accident took place solely on account of rash and negligent driving of driver of the offending vehicle. While claimant and Sitaram were crossing Nepean Sea Road, the offending vehicle came from Kemp corner side and dashed the claimant all of a sudden. As against this, it is the case of the opposite party and the insurer that the claimant and his servant Sitaram were guilty of contributory negligence. This aspect is considered in detail by the Tribunal from paragraphs No.19 to 36. The Tribunal considered the judgment of the Criminal court at paragraph 14.
Before the Criminal court, the driver of the offending vehicle pleaded guilty. The Tribunal also considered testimony of servant Sitaram, who was examined as AW 2 at Exhibit-29. The Tribunal also considered the evidence of AW 3 - Chandrakant Shinde at Exhibit-31, who was Panch to the panchnama at Exhibit-32. After considering the material on record, the Tribunal held that the claimant proved that he sustained injuries due to rash and/or negligent driving of the offending vehicle as also the opposite party failed to establish that the accident took place on account of contributory negligence on the part of the claimant and servant Sitaram. I do not find that the Tribunal committed any ::: Downloaded on - 24/11/2014 23:47:28 ::: 13 / 54 FA/762/1990 error in arriving at the conclusion. Ms. Agarwal did not seriously challenge the findings recorded by the Tribunal on this aspect.
Real contest between the parties is as regards the quantum of compensation. In view thereof, I record my finding in the affirmative against Point No.1 and in the negative against point No.2.
POINT NO.3
17) Before considering the fixation of quantum of compensation, it is necessary to note that it has come on record that after the accident that took place on 18 th October, 1978, the claimant was admitted to Breach Candy hospital. He was in unconscious state for about five months. Since claimant did not regain his consciousness while in the hospital, out of despair, he was brought to home with an idea that the treatment can be continued in the house as in the hospital. All the facilities and amenities, available in the hospital, were made available in the house as per the doctors advise and the line of treatment, as suggested by the doctors from time to time, was given by the help of nurses which were specially engaged. Much efforts were made by the family to bring the claimant to his senses and the consciousness was regained by the claimant. The consciousness was regained in the middle of March 1979. Due to the brain injuries the claimant was not able to do anything and practically was in a paralitical condition. No efforts were spared for giving ::: Downloaded on - 24/11/2014 23:47:28 ::: 14 / 54 FA/762/1990 him the necessary medical treatment and also the education was provided to him. Somehow the claimant reached the mental ability of nine years old boy, although physically he was 20 years old. This was certainly a case of undeveloped child but the family had no other option but to put forth all efforts for his education.
18) It is also material to consider evidence of witnesses examined by the claimant. Dr.Naveen Shah - Orthopedic surgeon was examined as AW 14 at Exhibit-55. At the relevant time, he was attached to Children's Orthopedic Hospital and Holy Spirit Hospital, at Andheri. He deposed that the claimant had suffered a severe brain damage. The injury to brain is non-
progressive brain damage, technically called cerebral palsy. The line of treatment in case of cerebral palsy patient is decided by a team of doctors. The treatment is continuous for life for a cerebral palsipus. He advised physiotherapy, occupational therapy, speech therapy and advised further regular follow up surgery. He further deposed that the present condition of the claimant is that he has a residency effect of the brain injury sustained, resulting into weakness of muscles of upper and lower limbs in co-ordination of all muscles, slowness in speech, mental retardation and has conceptual and perceptual effect. He would not be able to walk within his house with an aid of crutches and calipers. He would not be a normal person. He also advised a ::: Downloaded on - 24/11/2014 23:47:28 ::: 15 / 54 FA/762/1990 change of climate as he was not responding to physiotherapy treatment.
19) Dr. Gajendrasingh, Neuro surgeon was examined as AW 15 at Exhibit-59. At the relevant time, he was attached to Jaslok Hospital, Breach Candy hospital and Parsee General Hospital. After the claimant was admitted in Breach Candy hospital on 18th October, 1978, he started treating him. He deposed that the claimant was in the hospital for about three months. He was deeply unconscious, both pupils dilated and continuous fit on left side of his body. The claimant had a brain atem injury. He deposed that he used to visit the claimant in Breach Candy hospital while he was in serious state. He had consulted Dr. Wadia, Dr. Bharucha from Bombay(Mumbai) and Dr. Rammurthy from Madras (Chennai). After the claimant regained his consciousness five months after his accident, he had advised physiotherapy, speech therapy and rehabilitation at Children's Orthopedic hospital. He had also referred him to child psychologist. He used to discuss about claimant's condition with AW 14 Dr. Navin Shah on phone. He further deposed that from his experience as a Neuro surgeon, the claimant could not improve because his brain is permanently damaged. In his report, he opined that claimant will not be able to engage in any useful occupation and by that he meant that he is mentally ::: Downloaded on - 24/11/2014 23:47:28 ::: 16 / 54 FA/762/1990 retarded and mentally and physically very disabled. He advised to take continuous medicines. He also deposed that on the request made by the claimant's father, he did not object for consulting Dr. Rammurthy and Dr. Ramamurthy, being a Senior Neuro surgeon, he would like to discuss with him about the treatment.
20) The claimant also examined Priyavardan Shastri, Professor of Psychiatrist as AW 20 at Exhibit-71. He had given opinion at Exhibit-72, wherein he opined that the claimant would require treatment for his whole life. In his opinion, the claimant is backward by nine years. The claimant has a mental and physical level repressed to a stage of a new-born child.
21) The insurer examined Dr. Ashit Sheth, consulting surgeon as DW 2 at Exhibit-86. He is practicing as consultant psychiatrist and at the relevant time was Associated Professor in K.E.M. Hospital and Seth G.S.Medical College. He was also attached to Nanawati hospital and Bombay hospital. DW 2 deposed that the motor disability of the claimant prevents him to take up independent existence and still he has to walk with the help of crutches and with the help of crutches also, the balancing is very poor. He agreed that the periodical check up by Neuro Surgeon, Psychologist, Ophthalmologist may be necessary to ::: Downloaded on - 24/11/2014 23:47:28 ::: 17 / 54 FA/762/1990 judge the progress of the claimant. He also agreed that the claimant has cerebral brain damage. Even in paragraph 9 of the written submissions filed by the insurer, it is stated that the claimant is in a vegetable state.
22) In paragraph 138, the Tribunal, after considering the entire material on record has held that the brain injury sustained by the claimant had made him totally disabled to follow any avocation in his life time and the percentage of disability is cent per cent. The claimant does not have any mental or physical ability to take up any job for himself.
23) The provisions of the Act lay down that the Court has to grant just and fair compensation. Thus, it becomes a challenge for a Court of law to determine 'just and fair compensation' which is neither a bonanza nor windfall and simultaneously should not be a pittance.
24) In the case of K. Suresh, 9 the Apex Court observed in paragraph 2 to the effect that despite many a pronouncement in the field, it still remains a challenging situation warranting sensitive as well as dispassionate exercise how to determine the incalculable sum in calculable terms of money in cases of personal injuries. In such assessment neither sentiments nor ::: Downloaded on - 24/11/2014 23:47:28 ::: 18 / 54 FA/762/1990 emotions have any role. It has been stated in Devies Vs Powell Duffryn Associated Collieries Ltd. (No.2) 18 that it is a matter of pounds, shillings and pence. There cannot be actual compensation for anguish of the heart or for mental tribulations.
The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation.
25) In Jai Bhagwan Vs Laxman Singh, 19 the Apex Court reproduced the following passage from the decision by the House of Lords in H.West & Son Ltd Vs. Shephar.20 "My Lords, the damages which are to be awarded for a tort are those which 'so far as money can compensate, will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act' [Admiralty Comrs. v.
Susquehanna (Owners), The Susquehanna : ]. The words 'so far as money can compensate' point to the impossibility of equating money with human suffering or personal deprivations. A money award can be calculated so as to make good a financial loss. Money may be awarded so that something tangible may be procured to replace something else of like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the 18 1942 AC 601 19 (1994) 5 SCC 5 20 1964 AC 326 ::: Downloaded on - 24/11/2014 23:47:28 ::: 19 / 54 FA/762/1990 general method of approach. By common assent awards must be reasonable and must be Assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional."
26) In Jai Bhagwan case,19 the Apex Court also made reference to a passage from Clerk and Lindsell on Torts (16 th Edn) which is apposite to reproduce as it relates to the awards for non-
pecuniary losses:
"10. ... .. 'In all but a few exceptional cases the victim of personal injury suffers two distinct kinds of damage which may be classed respectively as pecuniary and non-pecuniary. By pecuniary damage is meant that which is susceptible of direct translation into money terms and includes such matters as loss of earnings, actual and prospective, and out-of-pocket expenses, while non-pecuniary damage includes such immeasurable elements as pain and suffering and loss of amenity or enjoyment of life. In respect of the former, it is submitted, the court should and usually does seek to achieve restitution in interregnum in the sense described above, while for the latter it seeks to award 'fair compensation'. This distinction between pecuniary and non-pecuniary damage by no means corresponds to the traditional pleading distinction between 'special' and 'general' damages, for while the former is necessarily concerned solely with pecuniary losses -
notably accrued loss of earnings and out-of-pocket expenses - the latter comprises not only non-pecuniary losses but also prospective loss of earnings and other future pecuniary damage."
27) In the case of K.Suresh,9 the Apex Court also made reference to its decision in Nagappa's case 6 wherein observations ::: Downloaded on - 24/11/2014 23:47:28 ::: 20 / 54 FA/762/1990 of Lord Denning M.R. In Lim Poh Choo V Camden and Islington Area Health Authority,21 were quoted with approval. The observations are to the following effect:
"25. ... ... .. The practice is now established and cannot be gainsaid that, in personal injury cases, the award of damages is Assessed under four main heads: first, special damages in the shape of money actually expended; second, cost of future nursing and attendance and medical expenses; third, pain and suffering and loss of amenities; fourth, loss of future earnings. (Lim Poh Choo Case, 1979 QB 196, QB pp.217-18 H-A)"
In K. Suresh case,9 the Apex Court observed in paragraph 6 as under :
"6. While having respect for the conventional determination there has been evolution of a pattern and the same, from time to time, has been kept in accord with the changes in the value of money. Therefore, in the case of Ward v. James it has been expressed thus: (All ER P.573 E-G) "(iii) Loss during his shortened span - Although you cannot give a man so gravely injured much for his 'lost years', you can, however, compensate him for his loss during his shortened span, that is, during his expected 'years of survival'. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid?
He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the changes in the value of money."
21 1979 QB 196 ::: Downloaded on - 24/11/2014 23:47:28 ::: 21 / 54 FA/762/1990
28) In Govind Yadav case,8 the Apex Court observed that personal sufferings of the survivors and disabled persons are manifold. Sometimes they can be measured in terms of money but most of the times it is not possible to do. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. It was further observed that the Insurance companies with whom the vehicles involved in the accident are insured usually have a battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accidents Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The Apex Court made reference to its earlier decision in R.D.Hattangadi5 case in paragraph 13 and observed thus:
"9. Broadly speaking while fixing an amount of ::: Downloaded on - 24/11/2014 23:47:28 :::
22 / 54 FA/762/1990 compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
29) The Apex Court, thereafter, referred to Reshma Kumari case17 where the Apex Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation and extracted portion therefrom. Paragraph 47 reads as under:
"47. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect' Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be ::: Downloaded on - 24/11/2014 23:47:28 :::
23 / 54 FA/762/1990 taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor."
Paragraphs 16 to 18 in Govind Yadav case read as under:
"In Arvind Kumar Mishra v. New India Assurance Co.
Limited: (2010) 10 SCC 254, the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"9. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation.The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered."
(Emphasis supplied)
30) In Raj Kumar,2 the Apex Court considered some of the precedents and held:
"5. The provision of the Motor Vehicles Act, 1988 ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages ::: Downloaded on - 24/11/2014 23:47:28 :::
24 / 54 FA/762/1990 objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned..... "
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, ::: Downloaded on - 24/11/2014 23:47:28 ::: 25 / 54 FA/762/1990 that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
(Emphasis supplied)
18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Company Ltd. (supra) and Raj Kumar v. Ajay Kumar (supra) must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."
31) Bearing in mind the above principles, let us consider the case in hand. In support of his claim, the claimant has examined the following witnesses. AW 1 - Rashmikant Hiralal Shah at Exhibit 11 (father of the claimant), AW 2- Sitaram Maniram Kadam, servant who accompanied the claimant on the date of accident at Exhibit-29, AW 3-Chandrakant Bajirao Shinde at Exhibit-31 who was Panch to Panchnama at Exhibit-32, AW 4- Deepak Anant Telekar at Exhibit-34 who is a Yoga Teacher, AW 5- Devendra Mohanlal Karia at Exhibit-37 who is friend of Rashmikant Shah and who claims to have accompanied ::: Downloaded on - 24/11/2014 23:47:28 ::: 26 / 54 FA/762/1990 Rashmikant to Mahableshwar, AW-6 Cherian Pappachan at Exhibit-38, Supervisor of Manav Mandir School, AW 7- Jyoti Bhaskar Sawant, Nurse at Exhibit -42, AW 8 - Roma Swamitra Barat, Social Worker at Exhibit-44, who gave tuitions to Rupesh, AW 9-Ms Zehara Abbas Rangwala at Exhibit-46 who is a Practitioner in speech therapy, AW 10 - Rahil jawarlal Razdan at Exhibit-48 who gave tuitions in Mathematics and Physics to Rupesh between July 1987 and April 1988, AW 11 - Ms Gita Nalinikant Dalal at Exhibit-49 who is Physiotheraphist, AW 12- Michel Navamani at Exhibit-51 who gave tuitions to rupesh in Mathematics between June 1986 and April 1987, AW 13
-Manibhadra Raghavji Shah at Exhibit-53 who is cousin of Rashmikant Shah. He claims to have accompanied Rashmikant and his family to Kodaicanal in May 1981 and May 1988, AW 14- Dr.Navin Mohanlal Shah at Exhibit -55, Orthopedic surgeon, AW 15- Dr. Gajendrasinh Onkarsinh at Exhibit-59, Neuro Surgeon, AW 16 - Sulochana Ramchandra Shetty at Exhibit-64 who at the relevant time, was working as Nurse in Breach Candy Hospital, AW 17 -Zehra Abbas Rangawala at Exhibit-66 who gave special tuitions between 1979 and 1982 to Rupesh, AW 18 - Jagdish Dattatraya Shet at Exhibit 68 who is a Chartered Accountant, AW 19 - Nisha Rashmibhai Shah, at Exhibit-70, mother of Rupesh, AW 20-Priyavardan Chandrakant Shastri at Exhibit-71 who is professor of Psychiatrist. Insurer examined DW 1 Shashikant ::: Downloaded on - 24/11/2014 23:47:28 ::: 27 / 54 FA/762/1990 Nailsukhji Dak at Exhibit-78, driver of the offending vehicle, DW 2-Dr.Ashit Shanishchandra Sheth, M.D., D.P.M. at Exhibit-86 who is a consulting surgeon.
32) The claimant has claimed amount of Rs. 2,50,924/-
under the head `expenses already incurred' before making of the Award. The Tribunal awarded Rs.1,11,985/-.The claimant is, therefore, claiming Rs.1,38,939/- in this Appeal.
33) The Tribunal observed in paragraph 63 of the impugned Award that following claims were not disputed by the Insurer;
Item No.1 30622.00 Exhibit 16, Bills and vouchers of Breach Candy Hospital.
Item No.2 6782.00 Fees for rehabilitation programme.
Item No.3 3278.00 Operation and Hospital charges paid to children's Orthopaedic Hospital on 17.10.1985.
Item No.4 1380.00 E.E.G.Reports, Exhibit-60.
330.00 E.E.G Expenses Receipt (Exhibit 83) Item No.5 719.95 Jaslok Hospital bill (Exhibit 19) and receipt (Exhibit 20) Item No.6 5750.00 Consultation charges and fees of Dr. Gajendra Singh (Exhibit 63) Item No.7 150.00 Consultation charges of Dr. Wadia, Receipt dated 6.11.1978 (Exh.21) Item No.8 960.00 Fees for Dr. Farook Udwadia being Nursing Home visits in November and December, 1989 (Receipt dated 8th January 1979 X-7) Item No.14 7190.00 13 vouchers by Nurse, A Valsan (X-8) Item No.15 12,375.00 18 vouchers by Sulochana Shetty, Exhibit 65 (X-
9) ::: Downloaded on - 24/11/2014 23:47:28 ::: 28 / 54 FA/762/1990 Item No.16 7225.00 11 vouchers Jyoti Sawant (Exhibit 43) Item No.17 50.00 Nurse Rathod (Exhibit 11) Item No.18 1260.00 Nurse Rebello, 4 vouchers (X-12) Item No.22 2642.00 Medicines under 25 voucher from December 1978 to September 1979 Exhibit 22.
Item No.27 500.00 For emergency medicines purchased on the advise of Doctors and Nurses.
Item 580.00 Paid to Zerban Rangwala for speech therapy in No.32(1) 1979 for six months. Two vouchers (Exhibit 47) Item No.33 8470.00 Paid to Physiotherapy to Miss Geeta Dalal under 26 vouchers upto February 1981 (Exhibit 50) Item No.37 350.00 Ambulance charges (Exhibit 23 colly) Item No.40 2000.00 Conveyance charges incurred by parents of rupesh when he was in Breach Candy Hospital. Item No.44 1000.00 Rs.50/- per day for 20 days. Mr Prakash an attendant in C.O.H. At the time of operation.
1375.00 Rs.25 per day for 55 days for Mr. Prakash an attendant looking after Rupesh in C.O.J. In april 1985.
Item No.45 150.00 For auxiliary crutches.
2,000.00 (Page 21 of the evidence)
Item No.46 1102.00 For Wheel Chair.
Item No.47 86.40 For walking stick.
Item No.48 350.00 For Walker.
Item No.49 800.00 For Static cycle.
Item No.50 375.00 For Splient 3 times.
Item No.51 675.00 Special Shoes 2 pairs
Item No.52 1000.00 Vestibular Ball.
Item No.53 1500.00 For rubber tips for crutches every two months.
Item No.61 500.00 For the hospital bed hire charges.
Item No.62 200.00 Oxygen cylinder.
::: Downloaded on - 24/11/2014 23:47:28 :::
29 / 54 FA/762/1990
Item No.63 1250.00 Scanning Report Charges (Exhibit 25) dated 16th
December 1986.
Item No.64 4000.00 Special diet at Rs.15 per day upto August 1979.
Item No.65 1000.00 Pair of Crutches every 4 months.
Item No.71 200.00 Dr.S.J.Bhatt, Consulting Fees. Bill part of Exhibit
83.
Item No.73 1250.00 C.T.Scan Examination paid to Bombay Hospital.
Bill part of Exhibit 83.
Item No.74 558.00 Paid to C.O.H. as per bill dated 8th September
1987, Exhibit 84.
Total 111985.35
The Tribunal accordingly awarded Rs.1,11,985/- which was not disputed by the Insurer thereby denying to Award Rs.1,38,939/-.
34) The Tribunal has disallowed the claim of Rs.1,38,939/-. Details of the items, nature of evidence led by the claimant and objections raised by the insurer are as under :-
CHART SHOWING DISPUTED ITEMS Item Under Head Amount Amoun Nature of Evidence Objections by No. Claimed t Opponents Awarde d 9 Paid to Dr.Ramamurthy 2,500/- Nil Evidence of Dr.Gajendra Singh AW 13, evidence of father of applicant AW 1 and notes of Consultation 10 Air fare charges for 1,500/- Nil -do- -do-
Dr.Ramamurthy 11 Professional charges for 500/-
Dr.Ramamurthy Second visit 12 Dr.Mrs Mehta, Dr.Swami 1,000/- Evidence of Father of None of the said Ayurvedic Dr.Vaidraj Applicant AW-1 and advice of Drs. examined Sharma of Bangalore Drs treating and no receipts produced.
::: Downloaded on - 24/11/2014 23:47:29 :::30 / 54 FA/762/1990 13 Paid to Dr. in Kodaicanal 1,000/- Evidence of father of None of the said for special treatment on applicant AW - 1 and advice doctors examined spinal cord of Doctors treating and no receipts produced.
19 4 Vouchers from Aya Nita 2,790/- Nil Documents x-13 and 14 and Aya in and the Desai (X-13) evidence of parents person concern not examined.
20 Paid to Aya Stell and 6,600/-
Mary under 22-vouchers (X-14) 21 For food and other 8,500/-
amenities provided to Aya Stella, Mary and Nita Desai 1979 to 1981 22 For Nootrophil capsules 5,400/-
given up to 4.8.79 23 From Sept.79 onwards for 100/-pm 5000 Dr's prescription and No vouchers medicines for Rupesh lump sum evidence. suggested lump sum of Rs.5000 for past and future medicines 24 For Nootrophil Capsules 5400/- 3000 Dr's prescription and No bills and evidence receipts produced, however Exh.12 and 42 supports that medicines given therefore lump sum Rs.3000 25 For Leirosel Tablets 1000/- 500 Dr's prescription and No bills and evidence receipts produced, and lump sum 500 suggested to be given 26 20 Udemine Injections 2,000/- Nil Dr's prescription and Six injections evidence already included Exhibit 22 includes price Item 22.Nothing to show that of 6 injections of the 20 injections are given Udamine) therefore unallowable.
28 Paid to Sangeeta Vora, 2,000/- Nil As per Dr.Shastri AW-18, Dr.Mulla Feroz not
Drawing Teacher: 2 Dr.Gajendra Singh AW-14 examined as
vouchers from 1980 to and Dr Mulla Feroz advice. father of Rupesh
Dec.1981)(X-11) AW-1 stated
employed on
advice of Dr.Mulla
Feroz.
::: Downloaded on - 24/11/2014 23:47:29 :::
31 / 54 FA/762/1990
29 Paid to Miss Rangwala 4,920/- Nil As per Dr.Shastri AW-18, Private or Special
Spl.Tutor under 23 Dr.Gajendra Singh AW-14 Tuition not a part
Receipts from Jan.1980 to and Dr.Mulla Feroz advice. of treatment.
Dec.1981 (X-17)
30 Expenses for the special 21,000/- Nil As per Dr.Shastri AW-18, Private or Special
Tutors from1982 till Dr.Gajendra Singh AW-14. Tuition not a part Jan.1987. Tutors Ms Receipts produced except of of treatment.
Cany,Mr Singh Ms.Roma.
MsRoma,Mr Michael
31 Monthly expenses for the 800/- pm Nil As per Dr. Navin Shah AW-15, Dr.Ashit Seth
private tuition will be Dr.Gajendra Singh AW-14. suggested to
required to be continued Receipts. discontinue
for 7 to 8 years. school education
therefore no need
of private tuition.
32 Paid to Zerban Rangwala 580/- 580 As per Dr.Shastri AW-18,
for speech therapy in ig Dr.Gajendra Singh AW-14
1979 for 6 months. Two and Dr.Mulla Feroz advice.
vouchers Exhibit 47
33 Paid to Physiotherapy to 8470/- 8470
Ms Geeta Dalal under 26
vouchers upto Feb.1981
(Exh.50)
34 Paid to Geeta Dalal upto 31,000/- Nil Dr.Geeta Dalal AW-11 and As Rupesh was
April 1986 receipts treated in C.O.H.
And getting said
treatment
therefore no
reason to
duplicating again.
35 Paid to Deepak bhai Yoga 1,600/- Nil Deepak examined at Exh.34 No advice for
tutor in April 1986 and case papers at Ex.36 Yoga exercise.
::: Downloaded on - 24/11/2014 23:47:29 :::
32 / 54 FA/762/1990
36 Expenses for 1,000/- pm Awar As per Dr.Navin Shah AW-15,
Physiotherapy treatment ded Dr.Gajendra Singh AW-14
throughout the life of Rs.25 advice.
Rupesh 000
under
the
head
of
conve
yance
charg
es
occas
ional
Physi
other
apy
and
unfor
ig eseen
expe
nses
38 Conveyance charge from 12,000/- 5000/ Oral evidence of applicant's Family already
1979 to 1987 (firstly from - father AW 1. having three cars residence to C.O.H. And and using of taxi thereafter from Manav for same not Mandir to residence. believable.
39 Per year conveyance 2,000/- to Nil Oral evidence of applicant's Family already changes from1987 and 2,500/- per father AW 1. having three cars said conveyance charges year for life and using of taxi will be throughout his life time for same not (Page 20 of the notices of believable.
evidence)
40 Conveyance charges 2,000/- Nil -do- Suggested limited
incurred by parents of expenses of
Rupesh when i.e. was in Rs.750/- only.
Breach Candy Hospital.
::: Downloaded on - 24/11/2014 23:47:29 :::
33 / 54 FA/762/1990
41 Rs.11,160.00 Attendant- 11,160/- Lump Evidence of AW-1,Attendant Family was in
Nathuram for two years sum AW-2. position to
25,00 appoint three
0 in servants in house
total and it would not
for all be required any
inevit extra
able expenditure.
expe Amount not
nses specified.
which
includ
es
conve
yance
,
physi
other
apy
perio
dical
check
ups,c
rutch
es
and
unfor
eseen
expe
nses
42 Dattaram for 8 to 9 4,950/- Nil -do- -do-
months Rs.4,950/-
43 For the expenses of 250/- and Nil -d0- -do-
attendant Sitaram per 450/- pm.
month Total 39,600/-
53 For rubber tips for 50/- Lump Some receipts on record and Suggested lump
crutches every two sum oral evidence of AW-1 sum for Rs.1500/-
months 1500 life time.
awar
ded
for
life
time.
54 Spent for last six years 1,800/- -do- -do- -do-
for rubber tips and same
is required to be spent
throughout the life.
::: Downloaded on - 24/11/2014 23:47:29 :::
34 / 54 FA/762/1990
55 Trip to Kodicanala in May 10,000/- Nil Evidence of Dr. Navin Shah Not medically
1980 AW-15 suggesting change of advised and no
climate, evidence of father vouchers, bills
AW-1 and evidence of produced.
Manibhadra shah AW-13
relative accompanied.
Medical report dated
4.9.1981 from C.O.H. Dr.
Mulla Feroz.
56 Trip to Kodicanal in 1981. 12,000/- Nil -do- -do-
57 Trip to Mahabaleshwar in 4,000/- Nil -do- -do-
May 1982
58 Trip to Kodicanal in 1983 12,000/- Nil -do- -do-
59 Trip to Mahabaleshwar in 4,000/- Nil -do- -do-
May 1984
60 Trip to Mahabaleshwar in 3,000/- Nil -do- -do-
Dec. 1985
66 Costs for
person's car
handicap 250000/-
ig Nil Oral evidence of father AW-1 Already having
family cars and
not medically
advised.
67 An attendant charges for 700/- pm to 2500 Oral evidence of father AW-1 Sitaram attendant
the future companion. 1000/- pm 0 and attendant Sitaram AW 2 is personally
lump looking after and
sum family has three
as servants hence
awar not required.
ded
under
items
no.41
to 43.
68 Loss of future earnings 100000 per 1500 Oral evidence of father AW-1 Suggested
year 00 in business of family and Rs.100000 lump
lump education of family members sum
sum and their earnings and
balance sheets and P & L
a/cs showing annual turn
over to Rs.2.5 to 3 Cr. Per
year.
69 Expenses for the world 50000/- Nil Oral evidence of AW-1 and Objected that the
tour by the father of business a/c expenses born by
Rupesh partnership firm
and no
particulars.
70 Loss suffered by the 500000/- Nil Oral evidence of AW-1 and The claimant is
partnership firm Devraj business sheet and P. & L. not partner into
Nancy & Co. A/c produced the firm nor
taking part in
affairs of firm
activity.
::: Downloaded on - 24/11/2014 23:47:29 :::
35 / 54 FA/762/1990
72 Jyoti M.Doshi. Bill part of 1,800/- Nil Oral evidence of AW-1 and The recipient was
Exhibit 83 Dr.Seth. not examined
Total Rs.1,38,939/-
The Tribunal rejected the claim, inter alia, by holding (1) that the expenses incurred were unnecessary and the treatment was not suggested by the doctors who were examined claimant, (2) Doctors who gave treatment were not examined and no receipts were produced, (3) Private or Special tuition was not part of treatment, (4) No advise was given for Yoga exercise, (5) Family already had three cars and, therefore, expenses incurred by traveling in taxi were not believable, (6) Family of the claimant can afford to appoint three servants in the house and, therefore, additional attendant was not required and consequently expenses incurred in that regard cannot be allowed.
35) I have already briefly indicated the testimony of the witnesses examined by the claimant as also the purpose for which, they were examined. I have also extracted the nature of evidence led by the claimant in order to substantiate the claim of Rs.1,38,939/- disallowed by the Tribunal and the objections raised by the insurer in a tabular form. It is also material to note that the Tribunal has recorded that after the accident, the claimant was in unconscious condition for about five months. Since he did not regain his consciousness while in the hospital, out of despair, ::: Downloaded on - 24/11/2014 23:47:29 ::: 36 / 54 FA/762/1990 he was brought to home with an idea that the treatment can be continued in the house as in the hospital. All the facilities and amenities, available in the hospital, were made available in the house as per the doctor's advise and the line of treatment, as suggested by them from time to time. Nurses were specially engaged for that purpose. The Tribunal also recorded that much efforts were made by the family to bring the claimant to his senses. No efforts were spared for giving him necessary medical treatment and also education was provided to him.
36) Having regard to evidence tendered by the claimant which was not effectively challenged in cross examination, in my opinion the Tribunal committed error in awarding Rs.1,11,985/-
against the claim of Rs.2,50,924/-. In my opinion, the Tribunal ought to have allowed the claim in its entirety. The claimant is, therefore, entitled to Rs.2,50,924/- rounded off to Rs.2,51,000/- under the head 'expenses already incurred' before making Award.
37) The claimant has claimed amount of Rs.9,00,000/-
under the head 'physical pain and suffering and mental shock' which is under the head 'non pecuniary damages' (Special Damages). In paragraph 149 the Tribunal observed that a boy of 7 years had been injured and he had been incapacitated ::: Downloaded on - 24/11/2014 23:47:29 ::: 37 / 54 FA/762/1990 throughout his life. The damage to the boy is much severe than in any other case that were referred. The Tribunal accordingly awarded Rs.75,000/-.
38) Mr. Ingale submitted that the claimant was just a boy of eight years old at the time of accident and now he is 44 years of age. Because of the accident he had lost all pleasures of his childhood and adolescence, including ability to move, run, play freely as other children do. The claimant has suffered 100% permanent physical disability. He will never be able to lead a normal life. He submitted that in the case of Nizam Institute of Medical Science,3 the Apex Court awarded Rs. 10,00000/- lump sum towards physical pain and suffering to the respondent an engineer who was a paraplegic. In Shweta Mehta's case, 4 a girl of 9 years became paraplegic on account of accident. The Division Bench of this Court awarded 4,00,000/- lump sum towards physical pain and suffering and mental shock. In the case of Rekha Jain10 she was a T.V. Actress, aged 24 years and had sustained permanent disability to the extent of 30% taken as 100% total functional disability. The Apex Court awarded 9,00,000/- lump sum towards physical pain and suffering. In the case of Sanjay Verma case,11 who was 25 years old and suffered 100% permanent disability, the Apex Court awarded 3,00,000/-
lump sum towards physical pain and suffering. In the case of ::: Downloaded on - 24/11/2014 23:47:29 ::: 38 / 54 FA/762/1990 V.Mekla,12 the Apex Court considered case of a girl, aged 16 years and who sustained 70% permanent disability and awarded Rs. 2,00,000/- under the head of 'physical pain and sufferings'.
39) As noted earlier, in the case of Govind Yadav, 8 the Apex Court observed that. -" personal sufferings of the survivors and disabled persons are manifold. If an individual is permanently disabled in an accident, the costs of medical treatment and care is likely to be very high. Sometimes the delay and the litigation expenses, make the Award passed by the Tribunal and even by the High Court ( in appeal) meaningless. In the present case, the accident took place on 18 th October, 1978.
The Claim petition was decided by the Tribunal on 30 th March, 1990 and the appeal is being disposed of in the year 2014.
40) In the case of Reshma Kumari, 17 the Apex Court observed in paragraph 47 that one of the incidental issues, which is sought to be taken into consideration, is inflation. Is the practice of taking inflation into consideration is wholly incorrect?.
Unfortunately, unlike other developed countries in India, there has been no scientific study. It is expected that the with the rising inflation, the rate of interest would go up. In India, it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality.
::: Downloaded on - 24/11/2014 23:47:29 :::39 / 54 FA/762/1990 No hard and fast rule, however, can be laid down therefor.
41) The case of Ward Vs. James was considered by the Apex Court in the case of K.Suresh,9 it was observed that, -
"Although you cannot give a man so gravely injured much for his `lost years', you can, however, compensate him for his loss during his shortened span, that is, during his expected `years of survival'. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance.
But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money."
42) In the case of H. West & Son Ltd.20 the House of Lords observed that, it is eminently desirable that so far as possible comparable injuries should be compensated by compararable awards."
43) As observed by the Apex Court in the case of Rekha Jain case,10 the Court is required to keep in mind justice, equity ::: Downloaded on - 24/11/2014 23:47:29 ::: 40 / 54 FA/762/1990 and good conscience which must be the primary, relevant and important aspects for awarding just and reasonable compensation to an unfortunate victim, the appellant herein, who had sustained grievous injuries to her body and whose future prospects are completely doomed. The Apex Court observed that the Tribunal and the Courts while awarding compensation for bodily injuries, must realise that the possession of one's own body is the first and most valuable of all human rights and that all other possessions and ownership are the extensions of the basic right. Bodily injuries should be equated with the deprivation which entitles a claimant to damages and the amount of damages varies in accordance with the gravity of injuries. In my opinion, having regard to the fact that after the accident, he was unconscious in a hospital for nearly 5.1/2 months as also the Tribunal recorded a categoric finding that the claimant had sustained 100% permanent physical disability, it would be just and reasonable to award Rs.4,00,000/- in lump sum. This will in tune with the decision of the Apex Court in the case of V. Mekla where she sustained 70% permanent physical disability as also the Division Bench decision of this Court in the case of Shweta Mehta case which was a case of a year give becoming paraplegic. I accordingly hold that the claimant is entitled to Rs.
4,00,000/- in lump sum as against the claim of Rs.9,00,000/-
under head of Physical pain and sufferings.
::: Downloaded on - 24/11/2014 23:47:29 :::41 / 54 FA/762/1990
44) Under the head 'loss of amenities of life and loss of prospects of marriage, an amount of Rs. 9,00,000/- is claimed.
The Tribunal has awarded Rs.75,000/- under both heads of pain and sufferings and loss of amenities of life. In the case of K. Suresh,9 the Apex Court has held that the compensation under two different heads like permanent disability and loss of earning capacity can be awarded separately as incapacity and disability are quite different and are to be viewed in presenti as also in future. In the case of Ibrahim,1 the Apex Court has awarded lump sum Rs. 2,00,000/- to a boy of 18 years towards loss of marriage prospectus and enjoyment of life. In Rekha Jain's case, 10 a T.V.
Actress suffered permanent disability, although 30% was taken as 100% total functional disability and was awarded Rs.
10,00,000/- lump sum towards loss of amenities and pleasure of life. In the case of Govind Yadav,8 the Apex Court observed that the Court must adopt proactive approach. If victim is suffering from permanent disability, then adequate compensation should be awarded not only for physical injury and treatment but also loss of earnings and inability of victim to lead normal life and enjoy amenities and make a broad guess for the purpose of fixing amount of compensation. Considering the totality of circumstances, in my opinion, the claimant is entitled to Rs.
4,00,000/- under this head.
::: Downloaded on - 24/11/2014 23:47:29 :::42 / 54 FA/762/1990
45) The claimant has also claimed pecuniary damages plus special damages under the following heads:
(i) Physiotherapy
(ii) Attendants
(iii) Conveyance
(iv) Future medical expenses and periodical check up
(v) Cruch Tips
(vi) Loss of future income
(i) Physiotherapy
In support of this claim, the claimant relies upon the evidence of AW 15 Dr. Gajendra Singh, AW -14 Dr. Navin Shah Artho. Surgeon and AW 11 Dr. Geeta Dalal, Physiotherapist. The claimant has claimed Rs.4,80,000 at the rate of Rs.24,000/- per annum. Mr Ingale submitted that by applying the maximum multiplier of 18, minimum amount of Rs.4,32,000/- deserves to be awarded under the head of Physiotherapy. He relied upon the decision of the Apex Court in the case of Nizam Institute of Medical Science3 where the Apex Court awarded amount of Rs.10,80,000/- at the rate of Rs.3,000 - 4,000 per month for physiotherapy. In the case of Shewta Mehta, 4 the Court awarded Rs.36,000/- per year for Physiotherapy and applied multiple of 18 under inevitable expenses. In that case, Shewta was a girl of 9 years and became paraplegic.
::: Downloaded on - 24/11/2014 23:47:29 :::43 / 54 FA/762/1990 Having regard to the fact that the claimant is suffering from permanent traumatic brain injury (TBI) described as 'Cerebral Palsy, he has become a spastic child. The claimant has lost his mental control, movements are ataxic and because of growing age, has become heavier also become more rigid and insecured, depressed. As per medical advice, such patient requires for lifelong continuous rehabilitative services like physiotherapy to avoid spasticity and more weight. The condition is worst than that of paraplegic patient. Considering totality of circumstances and evidence on record, I find that the Tribunal ought to have awarded compensation under this head.
The Tribunal, however, did not award any amount under this head. I, therefore, hold that the claimant is entitled to Rs.4,32,000/- at the rate of Rs. 24,000/- per year and by applying maximum multiplier of 18.
(ii) Attendant: As per evidence on record, as also having regard to the fact that the claimant is 100% permanent disabled person, Mr Ingale submitted that compensation should be paid at the rate of Rs.75,000/- per annum. He submitted that in the case of Nizam Institute of Medical Science, 3 the Apex Court awarded Rs.14,40,000/- to a paraplegic engineer at the rate of Rs.4,000/-
per month for attendant and nursing care. In the case of Shwata Mehta,4 a girl of 9 years becoming paraplegic was awarded Rs.30,000/- per year for attendant but separately Rs.30,000/- per ::: Downloaded on - 24/11/2014 23:47:29 ::: 44 / 54 FA/762/1990 year for attendant-driver and applied multiple of 18 under inevitable expenses. In the case of Dattatray V/s. Nana 22 in respect of victim aged 25 years and who was paraplegic, the Court Awarded Rs.12,96,000/- in lump sum by applying multiplier theory. In my opinion, the claimant requires constant attendant having regard to his physical condition. The Tribunal warded Rs.25,000/- in all as against the claim of the claimant of Rs.4,80,000/-. In my opinion, the claimant is entitled to Rs.2000/-
per month under this head and by applying multiplier of 18, the claimant is entitled to Rs.4,32,000/-.
(iii) Conveyance:
Mr.Ingale submitted that as advised by Doctors, the claimant was required to visit hospital, garden and park etc daily by using taxi along with attendant and also required to visit hill Stations or any other place. The claimant is entitled to be awarded compensation at the rate of Rs.3000/- per month. In the case Nizam Institute of Medical Science,3 the Apex Court awarded Rs.2000/- per month. In the case of Shweta Mehta,4 the Division Bench of this Court awarded Rs.36,000/- per year for driver and Rs.24,000/- per year for petrol and vehicle maintenance and applied multiplier theory under inevitable expenses for conveyance. The Division Bench applied multiplier 18. The 22 2011(5) Mh.L.J. 854 ::: Downloaded on - 24/11/2014 23:47:29 ::: 45 / 54 FA/762/1990 Tribunal awarded Rs.25,000/- under the heads 'conveyance and physiotherapy. In my opinion, the claimant is entitled to Rs.2,000/- per month under the head 'conveyance' and by applying multiplier of 18, amount of compensation comes to Rs.4,32,000/-.
(iv) Future medical expenses and periodical check up:
Mr Ingale submitted that under this head, amount of Rs.4,00,000/- was claimed.
ig As against this, the Tribunal awarded Rs.5,000/- per month. He submitted that in Nizam Institute of Medical Science case,3 the Apex Court awarded Rs.25,00,000/- lump sum towards future medical expenses.
In Shweta Mehta's case,4 the Division Bench of this Court awarded Rs.60,000/- per year and applied multiplier theory under inevitable expenses of recurring medical expenses.
In the case of Dattatraya,22 this Court awarded Rs.2,50,000/- lump sum towards future medical expenses.
In Sanjay Varma's case,11 the Apex Court awarded Rs.
3,00,000/- lump sum towards future medical expenses. As noted earlier, from the evidence on record, it is clearly born out that the claimant has sustained 100% permanent physical disability. He is continuously required to undergo medical treatment. The claimant was unconscious for nearly 5 ½ months after the accident. In paragraph 41, the ::: Downloaded on - 24/11/2014 23:47:29 :::
46 / 54 FA/762/1990 Tribunal noted the contentions advanced on behalf of the claimant that it is taken to be case of miracle in the medical history that the claimant remaining unconscious for five months could survive. The Court can also take a judicial notice of increase in costs of medicines and hospitalization by manifold. Considering the fact that the claimant has suffered 100% permanent disability, in my opinion, the claimant is entitled to Rs.6,00,000/- lump sum towards future medical treatment and periodical check up.
(v) Cruch tips:
Mr.Ingale submitted that under this head, the claimant is entitled to Rs.45,000/-. He submitted that cost of cruch tips is Rs.2000/- for a pair plus tips replacement of Rs 100/- per pair for three months. In other words, expenses of Rs.2500/- per annum under the head of inevitable expenses and by applying multiplier of 18, it comes to Rs.45,000/-. He submitted that the Tribunal has awarded Rs.1500/- under this head. In my opinion, the Tribunal committed error in awarded Rs.1500/- lump sum under this head and ought to have awarded Rs.45,000/- under this head. Accordingly I hold that the claimant is entitled to Rs.45,000/- under this head.
(vi) Loss of future income:
::: Downloaded on - 24/11/2014 23:47:29 :::
47 / 54 FA/762/1990
Mr Ingale submitted that the Tribunal awarded
Rs.1,50,000/- lump sum with average of 1,500/- per month.
He submitted that family of claimant is engaged in diamond cutting business. Had the claimant not met with an accident, he would have assisted his father in the business. His younger brother is earning Rs.20 lacs per annum. Wife of his younger brother Shewata also earns approximately Rs.15 lacs. The claimant is, therefore, entitled to at least a sum of Rs. 1,00,000/- per annum and having regard to the decisions of the Apex Court in the case of Nizam Institute of Medical Science3 and this Court in Shweta Mehta case4 and Dattatraya case,22 the claimant is entitled to Rs. 40,00,000/-.
46) In paragraph 138, the Tribunal, after considering the material on record, has recorded a finding that the brain injury had made the claimant totally disabled to follow any avocation in his lifetime and the percentage of disability is cent percent. The claimant does not seem to have any mental or physical ability to take up any job for himself.
47) In the case of Rajkumar,2 the Apex Court, while dealing with the assessment of loss of earning capacity on account of disability is concerned, held in paragraph 13 as under, ::: Downloaded on - 24/11/2014 23:47:29 ::: 48 / 54 FA/762/1990
-
13. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to te the percentage of loss of earning capacity.
To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii)The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age,education and other factors.
48) Sir Winston Churchill regarded as one of the most important Statesmen of the 20th Century was asked a question :-
"What is the difference between a War and politics. He replied that in war a person dies only once and in politics a person dies everyday".
49) Somewhat similar observations are made by the Apex court, though in the context of victims of accidents in paragraph ::: Downloaded on - 24/11/2014 23:47:29 ::: 49 / 54 FA/762/1990 90 of Nizam Institute of Medical Science. 3 which is to this effect.
"At the same time we often find that a person injured in an accident leaves his family in greater distress, vis- `-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity."
50) In the case of Nizam Institute of Medical Sciences,3 the Apex Court observed in Paragraph 88 that, it must be emphasized that the Court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of,must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the ::: Downloaded on - 24/11/2014 23:47:29 ::: 50 / 54 FA/762/1990 parties concerned." It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualized. Life it is said is akin to a ride on a roller coaster where a meteoric ise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard."
51) The same was reiterated by the Apex court in the case of Ibrahim 1
52) Having regard to the family background and also having due regard to the fact that claimant's father is a diamond merchant, in my opinion, had the claimant not met with an accident he would have certainly assisted his father in diamond cutting business. Considering the evidence on record as also totality of the circumstances, in my opinion, the claimant is entitled to Rs.10,00,000/-.
53) The claimant has also claimed Rs.1,90,000/- under the head 'loss suffered by mother' and Rs.5,50,000/- under the head 'loss suffered by family in business'. The Tribunal did not award any amount under these heads. Having regard to the material on record, I also do not find that any case is made out ::: Downloaded on - 24/11/2014 23:47:29 ::: 51 / 54 FA/762/1990 by the claimant for granting compensation under these heads.
54) Ms. Agarwal relied upon decisions of Apex court in case of - 1) Lata Wadhava; 13 2) Satyendra;14 3) Kaushalya Devi;15
4) Jasbir Kaur;16 5) Reshma Kumari;17 and 6) Nagappa.6 . In these judgments, the Apex Court held that estimate of loss suffered by the claimant on account of death by the injury to minor, can be ascertained in monetary terms.
Hence, some amount is required to be granted towards compensation. I do not find that the reliance placed by Ms. Agarwal on the decisions of the Apex Court, advances case of the insurer in the light of the earlier discussion. Ms. Agarwal further submitted that against the decision of Division Bench of this Court in Shweta Mehta's case,4 an S.L.P. is preferred before the Apex court and the same is pending. Perusal of the order dated 19th April, 2010 shows that the Apex court noted that the amount of compensation, as awarded by the Tribunal, has been deposited by the petitioners. The claimants were at liberty to withdraw the amount deposited by the petitioners. In the meantime, the operation and implementation of the impugned order was stayed. Even if the decision of Shweta Mehta's case 4 is excluded from the consideration, on the basis of evidence on record and in the light of earlier discussion, in my opinion, the claimant has made out a case for enhancement of ::: Downloaded on - 24/11/2014 23:47:29 ::: 52 / 54 FA/762/1990 compensation.
55) In the light of the aforesaid discussion, Appeal partly succeeds and the appellant is entitled to compensation, as under, -
(A) Expenses already incurred Rs.2,51,000/-
(B) Physical pains and sufferings Rs.4,00,000/-
(C) Loss of Amenities and loss of
life of prospects of marriage
ig Rs.4,00,000/-
(D) Pecuniary Damages:-
(i) Physiotherapy Rs.4,32,000/-
(ii) Attendant Rs.4,32,000/-
(iii)Conveyance Rs.4,32,000/-
(iv) Future Medical expenses
& periodical check up Rs.6,00,000/-
(v) Cruch tips Rs. 45,000/-
(vi) Loss of future income Rs.10,00,000/-
__________________
Total Rs.39,92,000/-
------------------
56) Mr.Ingle submitted that Tribunal awarded interest @
6% p.a. He submitted that interest should be @ 9.5% p.a. Having regard to the recent decision of the Apex Court interest @ 12% p.a. ought to be awarded. As against this, Ms.Agarwal submitted that the Tribunal awarded interest @ 6% p.a. considering economy at the relevant time. The yardsticks of present day economy cannot be applied to decide case of interest. Hence, no fault can be found with the rate of interest awarded by the ::: Downloaded on - 24/11/2014 23:47:29 ::: 53 / 54 FA/762/1990 Tribunal.
57) In the case of Puttamma and Ors Vs. K.L.Narayana Reddy and Anr.23 , the Apex Court has dealt in detail with grant of interest in paragraphs 57 to 61. The Apex court considered Section 171 of the Act as also the provisions of Workmen's Compensation Act, 1923; The Consumer Protection Act, 1986;
Land Acquisition Act, 1894; Arbitration and Conciliation Act, 1996 as also decisions in - 1) Kaushnuma Begum Vs. New India Assurance Company Ltd. And Ors.24 ig 2) Abati Bezbaruah Vs. Deputy Director General Geological Survey of India and Anr.25 and 3) Supe Dei Vs. National Insurance Company Ltd. And Anr.26
58) In the case of Abati Bezbaruah,25 the Apex Court held that rate of interest must be just and reasonable, depending on the facts and circumstances of the case and should be decided after taking into consideration relevant factors like inflation, change in economy, policy being adopted by the Reserve Bank of India from time to time, how long the case is pending, loss of enjoyment of life etc. The Apex court left the question open for Tribunals and Courts to decide the rate of interest after taking into account the rate of interest allowed by the Apex court in similar cases and other factors referred in Abati Bezbaruah's case 25 23 AIR 2014 SC 706 24 (2001) 2 SCC 9 25 (2003) 3 SCC 148 26 (2009) 4 SCC 513 ::: Downloaded on - 24/11/2014 23:47:29 ::: 54 / 54 FA/762/1990
59) In the case of Kaushnuma Begum,24 Apex Court directed payment of 9% interest as the nationalized banks are granting 9% interest on fixed deposits for one year. Even now, Nationalized Banks are granting interest @ 9% p.a. On fixed deposit for one year. In view thereof, the appellant is entitled to interest @ 9% p.a. on the amount of compensation, as delay in disposing of this appeal is not attributable to any of the parties.
60) In the light of aforesaid discussion, appeal succeeds and is allowed accordingly. The appellant is entitled to receive amount of Rs.39,92,000/- subject to adjustment of the amount deposited/paid by the insurer within three months from today together with interest @ 9% per annum from the date of filing claim petition till the deposit of the amount with the Tribunal.
The Award made by the Tribunal is substituted by this Judgment.
The claimant shall deposit deficit court fees on the enhanced compensation.
61) In view of disposal of the appeal, Civil Applications No.1030/2009 & 1070/2009 do not survive and stand disposed of accordingly with no order as to costs.
(R.G.KETKAR,J.) ::: Downloaded on - 24/11/2014 23:47:29 :::